Selling sex: a look at the arguments around reforming prostitution laws

“Plainly speaking, money for sex persists as a result of how women are viewed by society,” Ash Denham, Scotland’s community safety minister, replies when asked about why the Scottish Government’s new consultation on how to tackle the demand for prostitution is so important.

“Prostitution is a highly gendered behaviour where the demand is almost entirely from men. In looking at this we need to see it through the lens of inequality because we know that the majority of those selling sex are women and those buying are men. This is why the focus of this consultation is on challenging men’s demand for prostitution.”

In the eyes of the Scottish Government, prostitution is a form of commercial sexual exploitation and is considered violence against women. The consultation, therefore, is seeking views on ways to reduce the harms associated with prostitution and to support women to exit. It forms part of the government’s Equally Safe strategy, which centres around preventing and eradicating violence against women and girls.

 “The strategy is ambitious and encourages us all to be bold in prioritising actions which will eliminate systemic gender inequality that lies at the root of violence against women and girls,” explains Denham.

But while this approach makes perfect sense when explained in these terms and seems to come from a place of compassion and genuine desire to protect dignity and human rights, there are others – including charities representing sex workers and sex workers themselves – who disagree with the overarching aim to help women out of prostitution.

In fact, the issue has become so polarised that the consultation itself is likely to get buried beneath the argument over whether sex workers need to be ‘rescued’ in this way.

Glasgow-based sex worker-led charity Umbrella Lane says what they need is respect and support to carry out their work as safely as possible.

Dr Anastacia Ryan, founding director of the charity and lecturer on sex work policy at Glasgow University, warns that the consultation’s narrative is a “small-minded view of what sex work is”.

“It talks about someone as if they’re passive, they’re exploited, they’re victimised and they’re powerless,” she tells Holyrood. “We have a real issue with exiting-based services that come from that approach. And that extends beyond sex work; if you treat someone like they’re powerless and you don’t empower them, then that person is not in a position to feel able to exit or to move on or to go for an interview for another job, for example.

Prostitution has wide reaching impacts both on the individuals involved and across Scotland’s communities

“We recognise that they do have agency, we recognise that people make choices within circumstances, often around things like childcare and studies, and that by empowering people in those choices, we believe that’s a better approach towards supporting people to move on should they wish to.

“The narrative closes the space for anyone else coming in to talk about these choices that are often made in difficult circumstances, it’s very one-sided and closed-minded and not informed by the views of the majority of sex workers in Scotland.”

Denham says she is fully aware of the “range of views on the approach to tackling prostitution” and welcomes those with differing viewpoints to contribute to the consultation. But the Scottish Government’s stance remains clear.

“Prostitution has wide reaching impacts both on the individuals involved and across Scotland’s communities,” says Denham. “It is often hidden from public view and can be very harmful. In order to tackle the harms from this behaviour and the attitudes that help perpetuate it, we need to look at the dynamics in our society which has allowed us to turn a blind eye to the harmful and exploitative nature of prostitution.  Harms can vary from threats, rape, sexual assault, poor mental health and addiction.

Scottish Government seeks views on challenging men's demand for prostitution

“This consultation is an opportunity to hold a national discussion about how we address this form of gendered violence, protect the dignity and human rights of women and improve outcomes for them.” 

Currently in Scotland, buying and selling sex is not actually illegal, but ‘brothel keeping’ and ‘controlling prostitution for gain’ are.

At the heart of the consultation is a commitment to reforming laws surrounding prostitution, which could lead to the purchasing of sex being criminalised – the so-called Nordic model.

The Scottish Government commissioned research, which was published in 2017, looking at international evidence on making the purchase of sex illegal, but said that it did not provide any conclusive evidence that harm would definitely be reduced through changes to criminal law.

However, it said the research revealed there was enough evidence to show a decreased demand for prostitution in countries where purchasing sex has been criminalised.

“In August 2019, I visited Sweden to learn more about the Nordic model, which is their approach to criminalising the purchase of sex, and what the impacts had been,” says Denham. “As part of that visit, I also met with an organisation offering support to women exploited for commercial sexual purposes. Understanding the support needs of women involved in prostitution will be vitally important in considering what works best for Scotland.

“The consultation seeks views on policy approaches adopted internationally which people consider may be most effective in preventing violence against women and girls. 

“It is important to note that the consultation does not commit to any particular course of action but rather includes broad questions on the Scottish Government’s approach to tackling prostitution including, though not exclusively, the legal context.”

Ryan, however, has a problem with going down the criminalisation route, and also with how the government is presenting the evidence.

“For us, the evidence is really clear: by criminalising clients, you’re pushing the industry underground,” she says. “It’s led to a 90 per cent increase in violent attacks towards sex workers in Ireland and a 42 per cent increase in violence towards sex workers in France.

The way the current law works is that it pushes people to work on their own or it criminalises people who work together for safety. That’s the biggest thing for us really in terms of a law change

“If you criminalise clients, you take away that option for sex workers to choose who they see because there will be a reduction in clients, particularly in the beginning, and there will also be people who are still prepared to purchase sex, people who are prepared to go against the law to do so, and I’m sure those people won’t be the nicest of clients.

“We feel it’s particularly naïve, even when people’s intentions are good, that they see the industry as something that isn’t in line with gender equality. A lot of people say it portrays this idea that women can be purchased, so even when they come from that good intention, we’ve seen that even in places where they have criminalised clients, there’s been absolutely no impact on either the demand or the selling side so the numbers of sex workers have remained the same and the numbers of clients have remained the same.

“Introducing this in law would increase that stigma towards sex workers. But it’s done in a way that is positioning the people bringing this forward as the saviours and I think that’s the part that’s really angering sex workers in Scotland who are saying they want rights. They want employment rights. They want access to justice should they become victims of exploitation. They don’t rescuing.” 

Ryan also argues that criminalising the purchase of sex would require testimony from those selling sex.

“Sex workers would also be caught up in the criminlisation and would be expected to testify against their clients. It would out sex workers in public and in the courts, which is not something people are prepared to do, so it’s an impossible task to criminalise clients without implicating sex workers within that.”

Instead, Ryan would like to see Scotland adopt an approach similar to New Zealand, where buying and selling sex were both decriminalised in 2003.

“We would also like to see the removal of criminal laws against third party management which would allow sex workers to choose who they were working for,” she says. “It would be more transparent who was managing people, because that’s where often exploitation can come in because this is the part that’s criminalised quite heavily here in Scotland. What we would like to see here is a focus on supporting people involved in sex work through the judicial system if they wanted to access justice for things like violence or exploitation.

“The way the current law works is that it pushes people to work on their own or it criminalises people who work together for safety. That’s the biggest thing for us really in terms of a law change. If people could somehow work out a way to bring forward a consultation that focused on people’s rights to be safe at work, which would mean being able to work together, even in pairs, for safety and not being criminalised for doing so.”

Denham, of course, has heard all the arguments from the charities supporting sex workers and accepts that there are “many different views”.

Criminalising clients makes sex workers poorer and therefore more desperate – it means sex workers are pushed to accept clients they might otherwise reject

“On the topic of empowerment or control and indeed much of the debates on how to tackle prostitution, there are polarised views,” she says. “We also know that many turn to prostitution not through choice but due to a range of vulnerabilities and complex factors.

“Unfortunately, those who are perhaps the most vulnerable or disempowered members of society may also be the least vocal. We need to ensure that we find ways to listen to those people too, who may have a very different experience or perception of prostitution.”

This is one of the reasons why community justice organisation Sacro welcomes the consultation on challenging men’s demand for prostitution.

Sacro has been providing support to women involved in selling or exchanging sex since 2005 through its Another Way service, which supports women in Edinburgh working on-street as well as in saunas. Last year, it launched its CLiCK service, which supports women who sell or exchange sex online throughout Scotland.

The organisation also supports women involved in the criminal justice system who might be vulnerable to commercial sexual exploitation.

“As a service provider with long-standing experience in supporting women, Sacro recognises that, although for a number of women the sex industry is a choice and a valuable source of income, there are harms and risks associated with the sale of sex and sexual activity on-street, indoors and online,” Angela Voulgari, Sacro’s Gender Based Violence Services Manager, tells Holyrood.

“This is particularly true for women for whom the sale and exchange of sex is a means of survival and the only alternative to destitution, and for women affected by intersecting forms of inequality.

“Sacro recognises prostitution as a gendered issue disproportionately affecting women and girls. The organisation’s work is in line with the Equally Safe strategy to achieving gender equality through effective interventions to prevent violence and to bring perpetrators of violence against women and girls to justice. As such, Sacro supports any steps taken to promote positive and safe choices for girls and women and to challenge attitudes and behaviours that would compromise gender equality in Scotland.”

However, Scot-Pep, another sex worker-led charity, believes any move to criminalise men will not help women working in prostitution.

Working to “defend and extend the human rights and labour rights of sex workers in Scotland”, the charity has come out against the Nordic model, agreeing with Umbrella Lane that it puts people who sell sex at even greater risk.

It cites a previous change to Scottish law in 2007, which criminalised the clients of street-based prostitutes – so-called kerb crawlers – and said as a result, violence against those working on the streets soared by more than 50 per cent.

Kat, a sex worker involved with Scot-Pep, says: “Criminalising clients makes sex workers poorer and therefore more desperate – it means sex workers are pushed to accept clients they might otherwise reject, or to get into cars more quickly, with less time to make a safety assessment.

“It means workers have to meet clients in darker or more isolated areas, because we have to cater to the client’s fear of arrest and meet him somewhere more hidden. Such a law is a gift to those who want to harm us – it’s a rapist’s charter.”